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Justice Dies, Judges Recuse, What To Do

You’ve seen the headlines. You know the impact.
Rehnquist’s distinguished 33-year Supreme Court career has come to an end.

“And while historians will debate whether he helped lead change
or simply reflected it, Rehnquist’s path indisputably traced a larger
transformation in society – from a time of burgeoning progressive
legislation and expanding federal power to the modern era of
judicial and political conservatism.”

And so a questions arises. Has this ‘modern era of judicial and political conservatism’ come to an end as well? Or will we see an escalation of conservativism? It won’t be long before professional pundits and blogdits weigh in on the matter. Especially now that two seats are vacant, a rare situation indeed. And an alarming one for many liberals.

For at issue is what hermeneutical key will the next two Bush-nominated justices use to interpret and reference the constitution. This is no small matter. It means applying the law as originally intended (or as literally written) or dynamically executing the law according to the modern cultural context (legislating from the bench?).

How important is this distinction? Without embellishment, it has meant the loss of more than 35 million lives.

Read on for more.

What bench legislation has caused the death of millions? Roe v Wade. The cultural question? Abortion.

Correspondent Stephen Henderson states:
“When the Supreme Court issued its landmark ruling permitting
abortion in 1973, it was William H. Rehnquist, the newest member
writing in his first major case, who penned the most provocative
dissent. He said the court was out of line recognizing a right that
wasn’t enshrined in the Constitution and arrogant for deciding an
issue that should be left to the democratic process. The court’s
rationale, he said, ‘is far more appropriate to a legislative judgment
than to a judicial one.’ ” (ibid)

Which leads me to discuss an attendant topic pulsing along the current news wires.

Here’s the story: Due to their moral and religious convictions regarding ‘taking the life of an innocent human being’ (to quote Judge John R. McCarroll of Shelby County Circuit Court in Tennesee) some judges are recusing themselves from decisions over allowing pregnant teens to proceed with an abortion.

Tennessee is among 18 states that require minors to seek parental permission before terminating their pregnancy. However, some states like Tennesee also allow for an alternative process. Teens can request a go-ahead from a judge.

This puts the judge in a pretty predicament. If he or she refuses to take such cases on moral grounds, then he or she is accused of an unwillingness to follow the law. And aren’t conservative judges suppose to simply apply the law as originally intended or literally written?

On the other hand, “If you requre judges to hear these cases when they are morally and, maybe, religiously opposed to abortion,” says Helena Silverstein, who teaches law and government at Lafayette College in Easton, PA, “they are likely to impose their views on the minor.” Meaning, the judge will refuse to allow the teen to abort.

And that could lead to an accusation of legislating from the bench. The very thing some conservatives fear might happen if the two new justices to the Supreme Court end up moving us away from a Rehnquist-shaped ‘modern era of judicial and political conservatism.’

So what does all this mean for interested parties?

First, we should not too forcefully plant our flag on either constitutional interpretive ideology since both have flaws when tested by practical application. The pot calls the kettle black in far too many instances.

Second, we need not worry about what era we are moving into with regards to judicial and political climes. Our system of government has worked for over 200 years and the checks and balances, while sometimes swinging with the wind, do maintain an overall – and divinely guided? – balance.

Third, and not least, we should continue to pray for God’s wisdom in the review, interpretation, judgment, application, and execution of the law. Yes, let’s work to place men and women of integrity in places of leadership. But let’s not place our trust in the mechanism of democracy – no matter who might serve as Supreme Court Justices in the future.

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For a provocative commentary on the death of Justice William Rehnquist and ‘modern era of judicial and political conservatism’ check out this must read post! Link: Broken Masterpieces: Justice Dies, Judges Recuse, What To Do.